Mohammad Mohy-ud-Din v The King Emperor

CourtFederal Court (India)
Docket NumberCase No. 40
India, Federal Court.

(Spens, C.J., Varadachariar and Zafrulla Khan, JJ.)

Case No. 40
Mohammad Mohy-ud-Din
and
The King Emperor.

International Law — Relation to Municipal Law — Construction of Statutes — Defence Legislation — Extra-territorial Operation of — Law of India.

Visiting Forces — Jurisdiction over — Offences Committed Abroad — Whether Exercise of Jurisdiction by Home State Contrary to International Law.

Jurisdiction — Over Nationals Abroad — Legislation for Defence Purposes — India — International Law — Relation to Municipal Law — Construction of Statutes.

This was an application for habeas corpus to test the validity of the detention of Burhan-ud-Din, a Captain in the 2/10 Baluch Regiment of the Indian Army. The détenu was a member of the ruling family of the Indian State of Chitral near the North-West Frontier and was, therefore, not a British subject. In 1936 he joined the Indian Army and was subsequently given a commission. He was posted to Singapore in 1942 and on the surrender of the British forces there was made a prisoner of war by the Japanese. After his return to India in 1945 he was suspected of having while in Rangoon and Singapore joined the Japanese forces and fought against the British and Allied armies. He was arrested and detained pending investigation of these charges and later was tried by court-martial. It was during this trial that the present application for the issue of a writ of habeas corpus was brought. It was contended that the court martial had no jurisdiction to try Burhan-ud-Din, a non-British subject, for an offence committed outside India, and that so much of section 41 of the Indian Army Act, 1911, as purported to give such jurisdiction was ultra vires the Indian Legislature.

Held: that the application must be refused. The Indian Legislature had been authorized to pass legislation for the defence forces of India even when abroad and there was no rule of international law inconsistent therewith. The Court (Per Spens, C.J.) said:

“Assuming that a subordinate legislature cannot validly make laws imposing punishments on non-subjects for offences committed by them outside the territorial limits of its jurisdiction, there can be no doubt that Parliament at Westminster can, if it so chooses, authorize even a subordinate legislature to legislate with extra-territorial effect. The only question, therefore, is whether, according to the plain meaning of the words...

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